Seeking to Copy — Legally– from Blu-ray Discs and Online Media

December 2, 2011

One of the criticisms of the digital locks used by broadcasters and Hollywood studios is that, in trying to squelch piracy, they can interfere with fair uses of copyrighted material by other artists. And under federal law, it’s illegal to circumvent those locks. Chicago-based Kartemquin Films (the subject of the video at top) and other documentary filmmakers won a temporary exemption from that law a year and a half ago, with the help of students at the USC Intellectual Property and Technology Law Clinic and lawyers from Donaldson & Callif of Beverly Hills. Now the clinic and the firm are seeking to extend the exemption to all filmmakers and authors of multimedia e-books.

The 1998 Digital Millennium Copyright Act made it illegal to circumvent “technical protection measures” on DVDs and other digital media. That created a dilemma for filmmakers who wanted to use a snippet from an earlier movie on DVD: Even if the use wasn’t infringing, they could still be sued for going around the locks. So even though circumvention tools are widely available online (despite the fact that they’re illegal to make or distribute), filmmakers used them at their peril.

That’s why documentarians sought an exemption from the Copyright Office in 2009. Recognizing the potentially chilling effects of the anti-circumvention provision, lawmakers had included in the 1998 law a requirement that the office consider granting relief every three years to those whose non-infringing uses were adversely affected. The exemption documentarians won in July 2010 applies only to DVDs, and it expires next year.

In seeking a new exemption, the filmmakers are focused on two problems, said Jack Lerner, a law professor at USC who directs the Intellectual Property and Technology Law Clinic.

The first is that fictional films have many of the same needs as documentaries, and they’re running into the same hurdles when trying to make legal uses of clips from movies, TV shows or news broadcasts. The second is that “technical protection measures” have become ubiquitous, extending beyond discs to media broadcast through cable, via satellite and online.

Documentarians have been joined in the current application by independent filmmakers creating works of fiction, and they’re seeking permission to circumvent the locks on Blu-ray discs as well as DVDs. And if the material they seek is available only as a digital broadcast or online stream, they want to be allowed to circumvent the copy-protection technology on those transmissions. A similar request was filed by the USC clinic and Donaldson & Callif on behalf of four authors working on multimedia e-books about film, who seek permission to circumvent the locks on DVDs and digital streams (but not Blu-ray discs, Lerner said, on the theory that no one using a tablet needs the extra pixels).

It’s worth remembering that the exemption wouldn’t allow filmmakers and e-book authors to make infringing uses of copyrighted material. It only applies to legal copying (or “fair use”). Think commentary, investigative reporting and parody, for example. So the question isn’t whether filmmakers and e-book authors are capable of doing good things with clips from copyrighted works — that’s a given. The question is whether they need access to copy-protected digital media to do those things.

The major Hollywood opposed the 2009 application, arguing that documentarians didn’t need to circumvent the locks on DVDs to get the clips they needed. Instead, the studios argued, they could film the scene as it played on a TV, or they could ask the owner for a licensed copy.

Anticipating a similar response this go-around, the filmmakers contend in their new application that they can’t get by with anything less than a high-definition copy, and that the licensing process puts them at the mercy of copyright owners who may not support the new works being created. Here’s an excerpt from their argument about their need for high-definition source material:

“The technical standards for film distribution have evolved in ways that require filmmakers to obtain high-definition source materials,” the filmmakers argue in their Copyright Office filing. “Since 2009, many television stations have adopted HD distribution requirements such that virtually all major broadcasters now require that filmmakers deliver their films in HD. Because of this new standard, it is now impracticable for filmmakers to distribute films that make fair use without access to an HD source,” such as Blu-ray discs.

Their application also includes copies of two standard licensing contracts for clips, both of which bar the clips from being used in a work that’s “derogatory to or critical of the entertainment industry” or the company that created the clip. Such conditions would make it well-nigh impossible to do a documentary about media bias, say, or to use clips in a historical drama with a critical edge.

The studios aren’t likely to welcome an authorized circumvention of the anti-piracy technology on Blu-ray discs, but the filmmakers contend that the material they need just isn’t available on VHS any longer and is increasingly scarce on DVDs. They also argue that as content creators, they too are eager to preserve copyrights and stunt piracy. And as far as they know, the exemptions granted for DVD circumvention haven’t given rise to any new allegations of infringement.

The requests to circumvent Blu-ray and streaming protections represent the edge of the envelope for the Copyright Office, which has moved slowly and incrementally in the past on requests for exemptions. But they’re a logical extension of the exemptions granted for making fair use of content on DVDs. A decision on the application is due next year; stay tuned.